Tsang Choi Ngun (Suing As One of the Executors and Trustees of the Estate of Wong Wai Fong, Deceased) v. Wong Wan Chi Anita

HCMP 223/2020

[2021] HKCFI 777

IN THE HIGH COURT OF THE

HONG KONG SPECIAL ADMINISTRATIVE REGION

COURT OF FIRST INSTANCE

MISCELLANEOUS PROCEEDINGS NO 223 OF 2020

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Before: Hon Au-Yeung J in Court

Date of Hearing: 9 and 23 March 2021

Date of Judgment: 23 March 2021

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J U D G M E N T

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A. Introduction

1.This is the Plaintiff’s application by originating summons (“OS”) for:

(1)  Revocation of the grant of probate granted to the Plaintiff and the Defendant as joint executrices of the will of Madam Wong Wai Fong, deceased (“the Deceased”) (“Revocation Application”);

(2)  Alternatively, the removal of the Defendant as an executrix of the will of the Deceased (“Removal Application”); and

(3)  In the further alternative, for the Plaintiff and Defendant’s assent to the vesting of the properties of the estate of the Deceased in the respective beneficiaries (“Assent Application”).

2.By a summons dated 23 November 2020, the Plaintiff also applied for leave to amend her OS, seeking, amongst others, to include the Revocation Application (“Amendment Application”).

3.The OS, supporting affirmation and notice of appointment for hearing have been served on the Defendant at her usual and last known address in Hong Kong.  She has previously applied by letters dated 10 August and 16 November 2020 for adjournment of the hearing of the OS; and has applied for legal aid on 15 September 2020.  Plainly, she was aware of these proceedings and chose not to appear.

4.At the hearing of the OS originally fixed to be heard before Wilson Chan J on 30 November 2020, it came to the Court’s notice that the Defendant appeared to have been in Thailand.  Out of caution, the substantive argument was adjourned to allow service of the said summons at the Defendant’s purported address in Thailand.  Unfortunately, the Order of Wilson Chan J did not include an order for service out of jurisdiction. 

5.At the hearing on 9 March 2021, again out of abundance of caution, this Court further gave leave to the Plaintiff to serve the summons and the order dated 9 March 2021 on the Defendant both in Hong Kong and at the Thailand address.  This was done.

6.The Defendant has not responded to the OS and the summons till today, I therefore proceed to dispose of this matter in her absence.

B.  Background

7.The Plaintiff is the mother of the Deceased and Ms Wong Ping (黃萍) and the grandmother of the Defendant.  The Defendant is the niece of the Deceased and Ms Wong Ping.

8.On 18 September 2019, the Deceased died.  By her last will dated 23 August 2019 (“the Will”), the Deceased:

(1)  appointed the Plaintiff and the Defendant as the joint executrices of the Will;

(2)  bequeathed her legal and beneficial interests (1/2 share) in the property known as Flat F7 on 14^th Floor of Block F, Tak Bo Garden, No.3 Ngau Tau Kok Road, Kowloon (“the F7 Property”) to her sister, Ms Wong Ping solely; and

(3)  bequeathed the balance of her estate to the Plaintiff and the Defendant in equal shares.

9.The Deceased had no liabilities and her estate includes:

(1)  the F7 Property;

(2)  the property situated at Flat B5 on 20^th Floor of Block B, Tak Bo Garden, No.3 Ngau Tau Kok Road, Kowloon; and

(3)  the balance of 5 bank accounts with Nanyang Commercial Bank Limited, Bank of China (Hong Kong) Limited, and Hongkong and Shanghai Banking Corporation Limited.

10.On 29 October 2019, the Plaintiff and the Defendant obtained the Grant.

11.The Defendant had been in possession of the Grant since at least 15 November 2019.  However, she had refused to carry out proper administration of the estate as explained in paragraphs 12-18 below.

12.The Defendant has failed to distribute the cash of the estate to the Plaintiff.  The Defendant insisted on opening a joint account with the Plaintiff and to transfer the balance of the estate to that joint account.  The Defendant told the Plaintiff that “she (the Defendant) would be in control of all the money and would give [the Plaintiff] money every month”.  When the Plaintiff declined the request, the Defendant immediately took away the Grant and left.

13.On 16 November 2019, the Defendant informed Ms Wong Ping by Whatsapp that she decided that nobody should be distributed the Deceased’s estate (決定所有不領), and that the Plaintiff’s children were to share her living expenses as always (仔女繼續各付嫲生活費用如以往一樣仔女担分).

14.On 18 November 2019, the Defendant further informed Ms Wong Ping by Whatsapp that the Grant had been destroyed (承辦書已銷毀) and went on to insult the Plaintiff’s children.

15.On 22 November 2019, the Plaintiff’s solicitors issued a pre-action letter to the Defendant, demanding her to distribute the Deceased’s estate.

16.However, on about 30 November 2019, the Plaintiff’s solicitors received the pre-action letter which had been torn into pieces.

17.By a letter dated 23 December 2019, the Plaintiff’s solicitors issued a further pre-action letter to the Defendant, demanding her to distribute the Deceased’s estate, but there was no reply.

18.Till now, the Defendant has not distributed the 2 properties nor the residuary estate to the beneficiaries.

C.  The Amendment Application

19.The amendments sought are to:

(1)  include the relief for an order that the Grant be revoked and a fresh grant be issued to the Plaintiff as the sole executrix upon her compliance with all the usual formal and procedural requirements of the Probate Registry;

(2)  re-arrange the sequence of the relief sought; and

(3)  to amend the terms of the order sought in the Assent Application.

20.It is well-established that all such amendments ought to be made for the purpose of determining the real question in controversy between the parties to any proceedings or of correcting any defect or error in any proceedings: Natamon Protpakorn v Citibank NA [2009] 1 HKLRD 455 (CA) at §25.

21.On the one hand, the proposed inclusion of the Revocation Application is made in response to (1) the possibility that the original Grant has been destroyed; and (2) the Defendant’s deliberate failure to participate in these proceedings. The facts disclose a real and substantial risk that the Defendant may not lodge the original of the Grant if so directed. This renders the original relief sought, ie removal of the Defendant as an executrix, insufficient.

22.On the other hand, the amendment to the Assent Application is only to amend the terms of the order sought.

23.The amendments do not bring about any change in the factual premise.  I am satisfied that the amendments, unopposed, are necessary for disposing fairly of the matter and for saving costs.  The other beneficiary of the estate, ie Ms Wong Ping, has given consent to the amendments sought.  I therefore grant the Amendment Application.

D.  The Revocation Application

24.The primary position of the Plaintiff is that the Grant should be revoked and a fresh grant to be issued to the Plaintiff as sole executrix. The other beneficiary Ms Wong Ping has consented to the Revocation Application.

25.Revocation of grant is governed by section 33(1) of the Probate and Administration Ordinance, Cap 10 (“PAO”), which provides that:

“(1) Where it appears to the court that a probate or administration either ought not to have been granted or contains an error, the court may call in the probate or administration and if satisfied that it would be revoked at the instance of a party interested, may revoke it.

(2) A probate or administration may be revoked under subsection (1) without being called in if it cannot be called in.

(3) The court may, if satisfied that the due and proper administration of the estate and the interests of the persons beneficially entitled thereto so require, suspend or remove an executor or administrator (other than the Official Administrator) and provide for the succession of another person in place of such executor or administrator and for the vesting in that other person of any property belonging to the estate.”

26.In Re Estate of Kwan Chung [2013] 6 HKC 34, Poon J (as he then was) held at §§25-26:

“25. Based on this legislative intent, the proper approach to s 33 is clear. When there is a supervening defect after grant, the applicant should consider:

(1) Whether removal of the grantee without revocation of the grant is sufficient. If yes, then he should proceed under s 33(3).

(2) Whether there are additional special circumstances that require revocation of the grant as well. If such circumstances exist, then he should proceed under s 33(1).

26. What constitutes the requisite circumstances justifying revocation in addition to removal must depend on the actual facts of the case. While it is impossible to define the circumstances exhaustively, some examples can be gleaned from the authorities. They include mental incapacity of the grantee; disappearance of the grantee who had not administered the estate; and exceptionally, the grantee wishing to be relieved of his duties. The court will duly consider the circumstances relied on to see if they really warrant revocation of the grant in addition to removal.” (underline added)

27.Where a personal representative is uncooperative and fails to participate in the proceedings of revocation/ removal despite service, revocation of the grant may be necessary: see Re Estate of Kwan Chung at §34, per Poon J; Mak Mei Ki Angela v Chan Wai Fong [2017] 2 HKLRD 515 at §12, per Au-Yeung J.

28.Applying the principles above and having regard to the facts set out in paragraphs 11-18 above, there is a supervening defect after the Grant in that the Defendant has obstructed the administration of the estate.  Not only has she failed to cooperate in distributing the estate but she claimed to have destroyed the Grant.  She is now unresponsive.  Her irresponsible behaviour has prevented the beneficiaries from receiving the gifts from the estate.

29.I am satisfied that the Grant should be revoked.

E.  Removal Application

30.Removal of a personal representative is governed by section 33(3) of PAO.

31.It is not necessary to establish wrongdoing or fault by the personal representative in order to remove a personal representative.  The Court may order removal if, for example, the breakdown of relations between the personal representatives (such as clash of personalities, or the lack of confidence in the personal representatives by the beneficiaries) leads to the administration coming to a standstill, or makes it difficult or impossible for the administration to be completed by an existing personal representative: Re Estate of Kwan Chung at §15, per Poon J.

32.Ultimately, it is an assessment by the court having regard to all the relevant circumstances of the case if removal is required for the due and proper administration of the estate and the interests of the persons beneficially entitled: Tsang Wing Kwai v Tsang Wing Fai (No 2) [2019] 1 HKLRD 1300 at §27, per Lam VP.

33.In the present case, the Defendant was at fault in obstructing the administration of the Deceased’s estate and has brought it into a standstill for over 1 year.

34.Further, the conflict of the Defendant with the Plaintiff has made the administration difficult.  From the extreme hostile remarks that have been made by the Defendant in respect of the Plaintiff’s children, it appears that the Defendant considered that the Plaintiff’s children would have swindled the Plaintiff’s share in the Deceased’s estate out of her, which led her to destroy the Grant. Unless the Defendant’s misapprehension could be dispelled, there is virtually no chance that administration of the Deceased’s estate can proceed smoothly.

35.I am therefore satisfied that removal of the Defendant is justified.  

36.If a personal representative is removed from the office, he/she has to lodge the original grant with the Probate Registry so that the order for removing him/her can be endorsed on it: Re Estate of Kwan Chung at §34; Practice Direction 20.2 at §52.  I make an order accordingly that the Defendant should lodge the original of the Grant with the Probate Registry.

37.Further, the Defendant has never participated in these proceedings. There is a real and substantial risk that she may no longer have the original Grant, or may not be willing to lodge it with the Probate Registry for endorsement of the order if so directed. Mere removal of the Defendant will become in vain.  This will cause further unwarranted delay to the due and proper administration of the Deceased’s estate.  To avoid that happening, upon revocation of the Grant, a fresh grant should be issued to the Plaintiff as sole executrix upon her compliance with the requirements of the Probate Registry.

G.  Assent Application

38.Given the above findings, there is no need to consider the Assent Application at all as it would require cooperation of the Defendant with the Plaintiff. 

H.  Conclusion

39.I grant the Amendment Application.  For the reasons given, this is a plain case for removal of the Defendant as executrix and revocation of the Grant.  A fresh grant should be issued to the Plaintiff upon her compliance with all the requirements of the Probate Registry.  The Defendant should deliver the original Grant to the Probate Registry for revocation within 14 days of the date of this judgment.

40.As for costs, it is wholly the Defendant’s conduct which necessitated these proceedings and the amendments to the OS.  She should bear costs personally on indemnity basis: Re Estate of Kwan Chung at §36; Mak Mei Ki Angela v Chan Wai Fong at §21(f).

41.Without disrespect, this case has no complication.  There was no need to engage more than 2 fee earners at any stage.  The fees charged are excessively high.  Even on indemnity basis, I would only summarily assess the costs to be $150,000.

42.I therefore make an order nisi that the Defendant do pay the Plaintiff’s costs on indemnity basis in the sum of $150,000. The Plaintiff’s own costs should be borne out of the estate.

43.I thank Mr Kung for his assistance.

Mr Jason Kung, instructed by Chan & Chan, for the Plaintiff (Attendance of Chan & Chan was excused on 23 March 2021)

The Defendant was not represented and did not appear